Management of Long-Term Disabled Employees:How to Navigate the Current Legal MinefieldEmployers often find themselves in a situation where employees on still on ” their books” that have been absent from work for an extended period (in some cases for years) on long-term disability or WSIB absence. Employers often make the mistake of assuming that these employees can be terminated on the basis of “frustration of contract” or based on termination provisions of a collective agreement. Terminating these employees without regard for their legal rights will most likely be an expensive & time consuming mistake.

Things are Changing at the WSIB. Recent jurisprudence from the Supreme Court of Canada has struck a blow against forum shopping by employees claiming disability benefits and human rights violations at the same time. Recent changes to the WSIB’s Return-to-Work, retraining programs and experience rating programs will have a significant impact on how employers manage claims & employment issues to control costs and avoid liability and surcharges

It has become increasingly common for employees with WSIB claims to file Applications with the Ontario Human Rights Tribunal at the same time, alleging discrimination on the basis of their disability. Employees are increasingly pursuing appeals at the WSIB or the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) questioning if their employer has adequately accommodated their disability. (this will increase more so with the AODA now in fully swing in Ontario)

In cases where a Human Rights Application has been filed and an on-going appeal is pending at the WSIB or WSIAT relating to a similar issue, the general practice of the Human Rights Tribunal has been to defer the hearing of the Human Rights Application pending the completion of the WSIB and/or WSIAT appeal proceedings (See Dhunsi v. J.T. Bakeries). Once a final decision of the WSIB has been made, the Human Rights Tribunal then makes a determination as to whether the WSIB has “adequately” dealt with accommodation related issues.

Defining “Adequate” Accommodation The question of what “adequately dealing with accommodation issues” means is a complex issue and is open to interpretation. It is important to appreciate that at the initial level of decision-making (the Case Manager & Claims adjudicator at WSIB) the issues considered and the evidence heard tends to be limited and is very dependent upon the level of participation by the employer and the employee. Decisions on the part of Case Managers can be appealed to the WSIB Appeals Branch (an internal WSIB appeal mechanism). Decisions of the WSIB Appeals Branch can be appealed to WSIAT. Each level of appeal allows for new evidence to be introduced and does not afford any deference to the decision of the Case Manager.

The issue of whether a WSIB decision “appropriately” dealt with accommodation issues has been considered on a number of occasions. In Galves v. Balzac’s Coffee Roastery, the employee was employed as a barista at a coffee shop. The employee experienced an injury to her back which resulted in lost time from work. The WSIB held a Return to Work meeting which was attended by the employee, the employer and a WSIB Return to Work Specialist.

According to the employee, the employer indicated during this meeting that the employee could not perform all her duties and there was no suitable position available for her. The result of the meeting was that the WSIB decided to refer the worker to Labour Market Re-Entry (now called Work Reintegation). The employee did not appeal the referral to Labour Market Re-Entry. The employer argued that the WSIB had “appropriately” dealt with the substance of the Human Rights Application by accepting the employer’s position that no suitable work was available and referring the employee to a WSIB funded re-training program. The employer sought early dismissal of the Human Rights Application.

The Human Rights Tribunal dismissed the request for early dismissal of the Application stating “the WSIB did not address the accommodation issues in the manner contemplated by the Human Rights Code and it appeared that the WSIB accepted the employer’s claim that no work was available at face value”. The Vice-Chair noted there was no indication that the WSIB determined whether the Employer met the obligation under the Code by considering whether the Employer’s reasons for not returning the employee to her job were because of undue hardship and the underlying factors of health, safety and costs.

The practical consequence of this is that the WSIB could find that no suitable work was available for a worker and the Human Rights Tribunal came to a different conclusion on what is essentially the same issue. Employers have been frustrated by the parallel litigation that has become commonplace in the WSIB/Human Rights context where employees who are unsuccessful in the WSIB Appeal process are being permitted to re-litigate the issue at the Human Rights Tribunal level.

Supreme Court of Canada Weighs In on this Issue

In

Figliola, the complainant workers suffered from chronic pain and sought compensation from the British Columbia WorkSafe which is equivalent to Ontario’s WSIB. Pursuant to the B.C. Board’s Chronic Pain Policy, the workers received a fixed compensation award.

The workers appealed to the B.C. Board’s Appeals Branch, arguing that a policy which set a fixed award for chronic pain was patently unreasonable, unconstitutional and discriminatory on the grounds of disability pursuant to the B.C. Human Rights Code. The B.C. version of the Appeals Branch accepted it had jurisdiction over the Human Rights Code complaint and concluded that the B.C. Board’s Chronic Pain Policy was not contrary to the Human Rights and therefore was not discriminatory.

The workers chose not to pursue further workers’ compensation or judicial review remedies and launched a Human Rights Complaint which made the same type of argument made before the B.C. equivalent of WSIB that the chronic policy breached the Human Rights Code. The B.C. Human Rights Tribunal dismissed a motion to dismiss the Human Rights Complaint on the basis that it had already been decided in the workers’ compensation context. This decision was ultimately upheld by the B.C. Court of Appeal.

The majority of the Supreme Court of Canada categorically rejected the approach taken by the B.C. Court of Appeal and the B.C. Human Rights Tribunal. The majority of the Court stated that when determining whether the workers’ compensation decision maker “adequately” dealt with the human rights issues “As long as the complainants had a chance to air their grievances before an authorized decision-maker, the extent to which they received traditional “judicial” procedural trappings should not be the Tribunal’s concern. (para. 49)”

The Implications Subsequent to the Supreme Court’s decision in Figliola, a number of decisions have been released which are favourable for employers.

In Gilinsky v. Peel District School Board, Gomez v. Sobeys Milton Retail Support Centre and Paterno v. Salvation Army, the Human Rights Tribunal of Ontario dismissed human rights applications on the basis that the subject matter had been “appropriately dealt with” in labour arbitrations. In Gilinsky, they made this finding despite the fact that the arbitration decision was pending judicial review. This suggests strongly that, where the conditions identified in Figliola are satisfied even at an initial decision making level, access to or even ongoing appeal processes ought not to affect the result at the Tribunal.

Recently in Frankson v. Workplace Safety and Insurance Board, the Human Rights Tribunal of Ontario found it had jurisdiction to find that the WSIB’s policies were themselves discriminatory. That case did not involve the employer directly. However, the decision confirmed that Figliola has not, in the Tribunal’s view, modified its jurisdiction to ensure the WSIB does not provide its “services” in a discriminatory way.

This may be pointing to a trend where employers, who follow decisions made by the WSIB and later face a human rights application, may name the WSIB as an additional responding party to the human rights application. The synergy between Figliola and Frankson may be that employers can, seek absolution (or at least limit liability) by arguing that the WSIB’s processes “adequately dealt” with the issues regarding employer compliance, and that liability for any violation should rest with the WSIB.

Look out for more employees claiming mental stress in the workplace thanks to the recent WSIAT decision for Ontario. In the recent past traumatic mental stress benefits were awarded by the WSIB if a traumatic event which presented a real or implied threat to physical well-being took place. The WSIAT decision, 483/11 held that a physical threat was not required. This is a very significant decision as this increases the number of claims which can now be made by employees, even based on harassment, perceived stressors over a period of time. Specific to the wording of this WSIAT decision the tribunal found the events which lead to an educational employee claiming “stress” were “objectively unexpected and traumatic which resulted in a disabling psychological condition so it granted the claimant benefits for traumatic mental stress”.